The Champion

March 2003 , Page 28

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Hostile Federal Prosecutors

By Hon. Carl Horn, III

How to deal effectively with indifferent, hostile, or otherwise difficult federal prosecutor

In the “better-old-days,” the primary concern of a criminal defense
attorney at sentencing was the predilection of the judge. Assuming the
judge was more-or-less neutral, he or she considered advocacy from both
sides, then exercised discretion to fashion a fair and appropriate
sentence. The best judges were not shallow tormentors with “black robe
fever,” but those who were humbled by the weighty responsibility of
wisely balancing society’s legitimate demand for justice and punishment
with a proper measure of mercy and compassion.

While we should avoid idealizing the way things “used to be,” it is an
objective fact that since 1987 most sentencing discretion in federal
cases has been either taken away entirely or transferred to the
prosecutor. In my view, as a former prosecutor and close observer of the
federal criminal process, this transfer of sentencing power has yielde

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